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Reply to Cort Wrotnowski

Mr. Wrotnowski send me an email, and this is my reply.

We agree that de Vattel writes eloquently espousing his view of natural law. And we agree that de Vattel was known to and likely influential in the minds of the framers of the Constitution.

That said, it would not be at all reasonable that to conclude that de Vattel’s views based on the stable Swiss society would closely fit in every respect the ideas from a fledgling frontier immigrant-driven democracy like the United States. Switzerland and the United States in the late 18th century were not the same kind of place. One had a stable population. The other needed immigrants just to keep the population from declining because of disease (at least this was the case in the southern colonies).

It would be an error to jump from the statement that de Vattel was influential to the statement that de Vattel was influential on issues of citizenship. One needs some additional evidence to make that connection and I do know where you would find that evidence.

You might mention the John Jay letter, but it communicates nothing more than “natural born citizens are not foreigners”. And again, the copy of de Vattel that John Jay might have had, did not contain those words, so the phrase itself did not come from the English translation of de Vattel, nor did it come from a literal translation of the French. John Jay of New York, it would seem to me, would be much more inclined to base natural born citizen on the language in his own colony’s legislation mentioning natural born subject, legislation which indicates that natural born subjecthood is based on location of birth alone such as this from 1770:

BE IT THEREFORE ENACTED by his Honor the Lieutenant Governor the Council and the General Assembly and it is hereby enacted by the authority of the same that the before mentioned several Persons and each and every of them shall be and hereby are declared to be naturalized to all Intents Constructions and purposes whatsoever and from henceforth and at all Times hereafter shall be entitled to have and enjoy all the Rights Liberties Privileges and Advantages which his Majesty’s Natural born Subjects in this Colony have and enjoy or ought to have and enjoy as fully to all Intents and purposes whatsoever as if all and every of them had been born within this Colony.

Further, I hope your reading of de Vattel extends to the few chapters following 212. What one learns is that according to de Vattel, the bottom line for allegiance in ambiguous cases is fatherhood. The mother doesn’t really matter; the place doesn’t really matter. Only the father matters. This is the exact opposite to what President Madison, whom some call “The father of the Constitution” said when he was in Congress:

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

And I also hope that you also read in de Vattel his admission that citizenship at birth in England without regard to parentage was an exception to his own view. So which is the Constitution based on Swiss common or English common law? I will give you a hint. The Supreme Court has spoken on that issue in the case of Smith v. Alabama. The answer is that the Constitution is written in the language of English Common Law.

So I say again, where is your link between de Vattel and American views of citizenship?

Colonial legislation in New York, Massachusetts, South Carolina, Virginia and Georgia all refer to natural born citizen or subject with terms that do not require parentage; I know of not one that does. If you do, enlighten me (with the FULL context).

You make a few misstatements that I must object to.

First, I am not cherry picking my sources. I don’t know of any source except the aside in Minor v Happersett that lead any credibility to your views, and this is a post 14th amendment case anyway. You might bring up some comments that were part of the debate on the 14th amendment, but there are comments on the other side that were not refuted and such debates are commentary, not authority. I don’t know what sources you could have (at least no sources that are represented honestly and in context). You don’t strike me a cheat.

My second objection is when you say that my dubious sources all surround the 14th Amendment. The colonial legislation I mentioned, and the citation from President Madison precede the 14th amendment, as does this from Vice Chancellor Sandford of the Supreme Court of New York in Lynch v. Clarke (1844):

The term citizen, was used in the constitution as a word, the meaning of which was already established and well understood. And the constitution itself contains a direct recognition of the subsisting common law principle, in the section which defines the qualification of the President. “No person except a natural born citizen, or a citizen of the United States at the time of the adoption of this constitution, shall be eligible to the office of President,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not.

Reading Lynch v. Clarke might do you some good. There’s a link on my Bookmarks page.

Parentage, yes or no? I will give you the answer in the words of Senator Lindsey Graham (R-SC):

Every child born in the United States is a natural-born United States citizen except for the children of diplomats.

 

Doctor C.

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34 Responses to Reply to Cort Wrotnowski

  1. avatar
    brygenon June 25, 2009 at 3:49 am #

    With all due respect to your efforts, Dr. Conspiracy, you should note that constitutional scholarship is merely a recent fancy of yours. If Wrotnowski wants to learn Constitutional law he can go take a course. This isn’t a debate between legal scholars; you’re a debunker and Court Wrotnowski is a kook.

    If you read Wrotnowski’s complaint to the Connecticut Supreme Court you’ll see familiar birther lies. “Analyses produced by three computer document experts asserting forgery of official state document.” “Sen. Obama and DNC refuse to release the birth certificate” “Note that the ‘Certification’ version is worthless and stated so by the Hawaii government.”

  2. avatar
    misha June 25, 2009 at 4:17 am #

    Buckley once remarked he spent a lifetime getting rid of the kooks. He didn’t do a very good job.

  3. avatar
    Dr. Conspiracy June 25, 2009 at 8:22 am #

    brygenon: “This isn’t a debate between legal scholars; you’re a debunker and Cort Wrotnowski is a kook. ”

    That about sums it up. But Mr. Wrotnowski seems to be a nice kook 😉 While you folks haven’t seen his letter (since I don’t post other people’s private emails), I get the impression that he genuinely believes in his position and that it is because he believes false premises, not that his reasoning ability is flawed. So in this discussion, I think debunking is what is needed.

    Of course any of you federal judges or legal scholars lurking out there on the perimeter of our campfire’s illumination are welcome to join the discussion.

    While I’m not a legal scholar, I do have the benefit of knowing what a scholarly argument looks like from the opinion in Lynch v. Clarke which I hope I can entice Mr. Wrotnowski and others who share his viewpoint to read.

    [Edited to add: I don’t really think Wrotnowski is a kook. My comment was meant to be funny. He doesn’t seem at all irrational to me. He’s just not been exposed to all the facts.]

  4. avatar
    Ian Gould June 25, 2009 at 9:03 am #

    I wouldn’t place too much faith in the “stable” nature of the Swizz population in the 18th century seeing as the country saw repeated conflicts between the protestants and Catholics and popular uprisings against the growing power of the nobility.

  5. avatar
    Bob June 25, 2009 at 12:57 pm #

    he genuinely believes in his position and that it is because he believes false premises, not that his reasoning ability is flawed

    ToMAYto, toMAHto.

    If he genuinely believes in false premises, how will reasoning accomplish anything? What de Vattel wrote is (essentially) undisputed; the Minor court did express doubt. He also knows what the court said in Wong Kim Ark, but reads it in a manner that suits his conclusion.

    The governing case law is not in dispute; it is the highly selective reasoning that is applied that’s being disputed. (As for the no-birth-certificate crowd, you can knock down every claim about the COLB’s invalidity or “proof” of Kenyan birth, yet that still won’t change minds.)

    For the media page: http://www.ketknbc.com/news/politics/ktbbs-question-day-is-there-enough-proof-president-obama-a-us-citizen

  6. avatar
    ballantine June 25, 2009 at 2:54 pm #

    Great response Doc. One additional point is that Minor v. Happerset does not support the Vattel argument. The birthers have always argued that the founders chose the Vattel definition over the common law definition, as there is little dispute what “natural born” meant under the common law. Minor said that since such term was not defined in the constitution, it must be defined by the common law and even admitted that citizen and subject were inter-changeable terms. It then says that under the common law, there is doubt whether birth within the realm to non-citizen parents was sufficient to confer natural born status. This is only dicta as such issue was not before the court, but it is nevertheless strange, unless Justice Waite has access to some authority no one knew about, as all significant UK and US authority expresses no doubt that the general rule under the common law was based upon locality of birth. Perhaps he was thinking of the various disagreements over the exceptions to the general rule. Justice Waite, however, cites no authority to support his statement and expressly declines to examine the issue.

    Of course, the Supreme Court did examine the common law with respect to citizenship at birth comprehensively in Wong Ark Kim and no one in such case suggested that the common law required one to have citizen parents in order to be a citizen a birth without a naturalization statute (by definition, “natural born” under the common law, which only recognized natural born and naturalized citizenship). Even the dissent agreed with this and rather argued the common law did not apply. Of course, many US courts, including the Supreme Court, had looked at the common law in this context in earlier periods and I am unaware that any disputed the Blackstone view based upon locality of birth.

    Thus, when Birthers cite Minor, the response should be that they are admitting that “natural born” was defined by the common law, not Vattel, and since Minor expressly declines to examine the common law, they should be asked to show what authority that actually examined the common law found that that Coke, Blackstone, Chitty, Kent, Tucker, Story, Rawle, Bouvier and all the other treatises and cases, in and out of the Supreme Court, that defined “natural born” under the common law as being based upon locality of birth, were wrong. Good Luck.

  7. avatar
    Expelliarmus June 25, 2009 at 2:58 pm #

    I think there are 2 classes of birthers — the Kenya-birth crowd & the parentage crowd. Wrotnowski & Donofrio are the latter, and I think they have made the gross error of teasing out a novel but plausible legal theory, and then falling so much in love with their theory that they can’t see its obvious flaws. I’m not sure if debating them has much point, given their own level of cognitive dissonance — but I do think that they are interested in maintaining what they see as the integrity of their argument.

    I think most of the Kenya-birth crowd are simply opposed to Obama politically, and would argue any point no matter how specious to further their agenda. Their philosophy is throw out as much shit as possible and see what sticks, and I don’t think they care if many of their “facts” are demonstrably false. They are perfectly happy to make up lies (TechDudes’ resume, for example) – and if they can create a patently false rumor and get others to believe it, they would consider that a victory.

  8. avatar
    Dr. Conspiracy June 25, 2009 at 3:59 pm #

    What the denialists get from Minor is not that Obama is ineligible, but rather that there is a “doubt” whether he is eligible. Doubts demand resolution. Since the survival of humankind depends on what the President of the United States does, “doubts” are a bad thing–because if the original intent of the Framers is not followed, surely we are all doomed. Heaven help us if someone born with a drop of British loyalty had his finger on the nuclear trigger. [Doc removes tongue from cheek.]

  9. avatar
    Dr. Conspiracy June 25, 2009 at 4:12 pm #

    I divide the two classes differently: those who make rational deductions based on false evidence, and those who make irrational deductions based on both true and false evidence. If the first class is empty, then I am really wasting my time.

  10. avatar
    Bob June 25, 2009 at 4:19 pm #

    If the first class is empty

    At this point in the game, I believe it is.

  11. avatar
    Expelliarmus June 25, 2009 at 4:44 pm #

    Actually, I believe at this point that the overwhelming majority of “birthers” simply have the motive of attacking Obama by whatever means are available, the truth (and law) being irrelevant to their purpose. The would be just as happy to abandon the birth/citizenship arguments if something with greater traction came along — they just stick with the birth/citizenship arguments because that’s the best they’ve managed to come up with.

  12. avatar
    Dr. Conspiracy June 25, 2009 at 5:36 pm #

    You know, I kinda suspected that back in December when I started this web site.

  13. avatar
    Bob June 25, 2009 at 5:42 pm #

    It certainly is an evergreen issue. Obama (and almost everyone else) has moved on and is addressing actual issues (economy, foreign affairs, etc.), so it is fairly clear that nothing further is going to happen on the birfer front. And because of that, it will live on until it finally peters out. (But rest assured that on January 21, 2017, the WND headline will read “Obama STILL Has Not Released his Birth Certificate!”)

  14. avatar
    Bob Weber June 25, 2009 at 6:14 pm #

    The two birfer groups often merge into each other. “Dr. Ron Polarik”, the ultramontane of the “born in Kenya” crowd, has recently been saying that place of birth is actually irrelevant, that Obama Sr.’s lack of American citizenship disqualifies Obama Jr. (Why did he bother then, with his “160 page analysis” of the online COLB?) This confirms that most of the birfer arguments are merely empty partisanship.

  15. avatar
    Bob June 25, 2009 at 6:24 pm #

    This confirms that most of the birfer arguments are merely empty partisanship.

    A few offer the hollow “just defending the constitution” rationale, which just so happens to coincide with a strong dislike for Obama. (Has anyone ever heard from someone who doesn’t believe he’s eligible yet is an Obama proponent?)

    Interestingly, few people around here (or similar sites) actually express much support for Obama (or his policies); rather, it is the wastefully futile (or extralegal) challenges to the presidency that concerns people.

  16. avatar
    Bob Weber June 25, 2009 at 6:24 pm #

    I believe Dr. C was referring to the low levels of Swiss immigration, not the lack of political conflict. There were indeed several conflicts, escalating even into armed clashes.

    BTW, there was no “nobility” is Switzerland at the time, and there isn’t now. Switzerland has been a republic since the original cantons tossed out the Hapsburgs in the late 13th century.

  17. avatar
    jtx June 25, 2009 at 7:27 pm #

    Dr. C:

    Cort W. is certainly much less of a “kook” than many of the fanciers of the O-borter on this blog. In fact, Cort is not a kook at all.

    It seems that almost all of you try to denigrate everyone who does not agree with you on the eligibility matter by trying (unsuccessfully) to pretend that whether or not the O-borter is legally eligible to occupy the oval office is somehow dependent solely upon his real BC and is therefore a political matter dealing with “conspiracies”.

    It’s not! It’s a legal matter as I’ve said before and will be settled in a court of law – eventually hopefully ending up with a SCOTUS clarification of the meaning of “natural born citizen”.

    Your “kook-baiting” is a bunch of childish nonsense but it seems to give several of you something to do with your time since – as we know – idle fingers are the devil’s tools.

  18. avatar
    jtx June 25, 2009 at 7:31 pm #

    Doc:

    I’d think a mature, no-nonsense guy like you could find a better placement for your tongue – considering all the synchophants you seem to have. 🙂

  19. avatar
    nbc June 25, 2009 at 7:35 pm #

    It’s a legal matter as I’ve said before and will be settled in a court of law – eventually hopefully ending up with a SCOTUS clarification of the meaning of “natural born citizen”.

    The courts have consistently held that it is not a legal matter. For obvious reasons. It’s called the Constitution

  20. avatar
    Dr. Conspiracy June 25, 2009 at 8:59 pm #

    Yes, I was referring to immigration.

  21. avatar
    Dr. Conspiracy June 25, 2009 at 9:10 pm #

    jtx, the vast majority of the people who visit this web site never comment. In May, I served over 15,000 different hosts and almost 140,000 pages, over 888,000 pages since the site began last December.

    The discussion is sometimes interesting and informative, but that’s not what the site is primarily for. The last thing I need is to preach to the choir.

  22. avatar
    Expelliarmus June 25, 2009 at 9:29 pm #

    It’s a legal matter as I’ve said before and will be settled in a court of law – eventually hopefully ending up with a SCOTUS clarification of the meaning of “natural born citizen”

    It is a legal “matter”, but not a legal issue. It will NOT be settled in any court of law because there is not a case pending that presents the issue.

    It is fundamental to our system of government that the powers of the court are limited to actual “cases or controversies” — and NOTHING gets to the court without a proper foundation being laid, which begins with the issues being raised by proper (interested) parties at the proper time.

    The only way the courts would get involved would be if Congress passed and attempted to enforce some law that framed the issue to be decided, and an aggrieved party challenged the law. If Congress passed a law that said, henceforth only individuals with 2 citizen parents could be considered “natural born citizens” — then surely a future presidential candidate would have standing to challenge the Constitutionality of that law by asserting their right to placement on state ballots. But no such law has been passed.

    As things currently stand, it is left to the electoral college and Congress to decide who is and who is not “qualified” to be President, and there has never been any justiciable dispute about Obama’s qualifications. No case, no court action.

  23. avatar
    Bob June 25, 2009 at 9:40 pm #

    You know, I kinda suspected that back in December when I started this web site.

    In December there a spate of cases (Lightfoot, Donofrio, Wrotnowski, etc.) kicking around; there were probably some back then who might have been “concerned” by the issues.

    But now, over six months (and numerous court denials and “grand jury” indictments) later, it is basically just “dead-enders” (to quote the former SecDef), who show no signs of acknowledging that this issue is over.

  24. avatar
    brygenon June 25, 2009 at 10:05 pm #

    Dr. Conspiracy wrote:

    Mr. Wrotnowski seems to be a nice kook 😉 […] I get the impression that he genuinely believes in his position and that it is because he believes false premises, not that his reasoning ability is flawed.

    Did I miss his retraction and apology for the lies?

    While I’m not a legal scholar, I do have the benefit of knowing what a scholarly argument looks like from the opinion in Lynch v. Clarke which I hope I can entice Mr. Wrotnowski and others who share his viewpoint to read.

    A little knowledge is a dangerous thing. I recommend “The Constitution and the Candidates” http://slate.com/id/2183588/ by Akhil Reed Amar http://en.wikipedia.org/wiki/Akhil_Reed_Amar .

  25. avatar
    Dr. Conspiracy June 25, 2009 at 10:48 pm #

    I looked at the Slate article. Amar may be a scholar, but his article was not scholarly. It cited no authority, ignored any contrary opinions and would be useless as a legal brief, or in a debate. He may be right, but one would have to accept that solely based on his credentials.

    I was not all that pleased with his claims of George Washington’s military record, nor the hasty gloss over McCain’s citizenship. (Amar ignores the dispute as to whether McCain was a citizen at birth.)

  26. avatar
    nbc June 25, 2009 at 10:59 pm #

    No case, no court action

    but but but… Never mind…

  27. avatar
    brygenon June 26, 2009 at 9:09 am #

    Dr. Conspiracy wrote:

    I looked at the Slate article. Amar may be a scholar, but his article was not scholarly. It cited no authority, ignored any contrary opinions and would be useless as a legal brief, or in a debate.

    Fine — we’re not writing legal briefs, nor are we debating scholars. Debunkers do not need to be subject domain experts. Amar’s Slate article is aimed at laypeople, which we are.

    Amar ignores the dispute as to whether McCain was a citizen at birth.

    Chalk another one up for Amar.

  28. avatar
    brygenon June 26, 2009 at 9:22 am #

    Even back in early December those suits were, in the words of CNN Senior legal analyst Jeffrey Toobin, “a whack-job project”.

    http://www.youtube.com/watch?v=CmsIFS2SYBs
    http://transcripts.cnn.com/TRANSCRIPTS/0812/05/ec.01.html

  29. avatar
    Bob June 26, 2009 at 11:22 am #

    Amar ignores the dispute as to whether McCain was a citizen at birth.

    Amar did state (in a conclusory manner) that McCain was a natural-born citizen because he had two U.S. citizen parents, thus sidesteping (as irrelevant) the issue of whether McCain was born on the base or in Panama.

  30. avatar
    Dr. Conspiracy June 26, 2009 at 3:39 pm #

    My comment about Wrotnowski was an attempt at humor (note the smiley face), and perhaps ill-advised. I don’t really think he’s a kook at all.

  31. avatar
    Dr. Conspiracy June 26, 2009 at 3:42 pm #

    Are you familiar with the series of articles on McCain’s eligibility that appeared in the Michigan Law Review, in particular the one by Prof. Chin from Arizona state?

    http://www.michiganlawreview.org/firstimpressions/vol107/chin.htm

  32. avatar
    Dr. Conspiracy June 26, 2009 at 3:49 pm #

    He didn’t sidestep the issue; he just asserted that everyone who is a citizen at the time of his birth is a natural born citizen, a not unreasonable position.

    The problem that he didn’t address is whether McCain really was a citizen at the time of his birth. I don’t think there is any real issue where he was born, certainly not after I zoomed in on that fake birth certificate. But the status of the law when he was born is another story.

    See http://www.michiganlawreview.org/firstimpressions/vol107/chin.htm

  33. avatar
    Bob June 26, 2009 at 4:05 pm #

    Obviously I can’t speak for Amar, but I get from his tone that he was unaware of “gap” created by the Insular Cases; of what I know of Amar, I believe his philosophies would suggest the Insular Cases were wrongly decided and ought to be overruled.

  34. avatar
    JinOhio August 1, 2009 at 5:03 am #

    Is this the John Jay letter to which you refer?
    “On July 25th, 1787, John Jay wrote the following to George Washington, then Presiding Officer of the Constitutional Convention:
    “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American Army shall not be given to nor devolve on, any but a natural born Citizen.”